The Free Movement of Persons

Definition The free movement of persons is mainly concerned with the freedom of economically active workers, the self-employed and person providing services to move around the EU to take up employment or business activity and establishing the principle of non-discrimination on grounds of nationality. The TFEU now incorporates the rights in Article 45 (Workers), Article 49 (SelfEmployed), Article 56 (Persons providing services) and Article 18 (NonDiscrimination). Article 20 and 21 TFEU were later supplemented by the secondary legislation to give the freedom movement rights to family members, students, retired persons and persons of independent means. These provisions have been consolidated in Directives 2004/38.

Limitations It has to be noted that the free movement of persons are not unlimited. Article 21 TFEU makes them subject to conditions and limitations laid down in the Treaty and by the means to give it effect. Moreover, member states can limit the free movement on grounds of public policy, public health, and public security.

Citizens of the European Union Article 20 TFEU provides that Citizenship of the union is hereby established and that every national of a member states is a national citizen. Article 21 TFEU grants free movement rights to all Union citizens, subject to the limitations and conditions in the treaty and secondary legislation.

1 RIGHTS ATTACHED TO UNION CITIZENS The Court of Justice stressed that the importance of the free movement of persons as a matter of social justice and to promote the living standard of Union citizens around the EU community. After the Union citizenship was created, the court began to use citizenship as the basis for rights, declaring the union is destined to be the fundamental status of the nationals of the member states. In Sala, the Court of Justice based non-discrimination on citizenship. Sala v Freistaat Bayern In the Sala v Freistaat Bayern, a Spanish national had been allowed to stay in Germany despite of her economic status being unclear (He had no rights to stay in Germany). She challenged the authorities refusal to grant her welfare benefits on the same basis as German nationals. The Court held that, as a Union Citizen lawfully resident in another member states, Sala could rely on Article 21 TFEU to claim entitlement to equal treatment with nationals.

The same principle has been applied in the case of Baumbast V Secretary of State for Home Department. Baumbast, a german national who had the status of a worker and then selfemployed in the UK challenged the refusal of his residence permit on the grounds that he was no longer economically active in the UK.

The Court held that Union citizenship formed the basis for residency rights. It was subject to the conditions imposed by the relevant secondary legislation granting residential rights to financially independent persons provided they had sufficient financial means and sickness insurance. However, Baumbast fell short in the provisions established in Article 21 TFEU in that of sickness insurance but he was not considered to be a financial burden on the UK therefore it was disproportionate to refuse him residency rights. 2 RIGHTS ATTACHED TO UNION CITIZENSHIP (DIRECTIVE 2004/38)

All Unions and their families The Directive 2004/38 allows all Union Citizens and their family to leave their home state and move and reside in another member state for a period of 3 months, without conditions or formalities, provided that the citizen holds a valid identity card (Eu nationals) or passport (non-EU nationals). Article 4 and 6 of the Directive requires non-eu nationals to hold a visa. For economically inactive citizens, the rights applied are subject to conditions that they do not become an unreasonable burden on the host states social security system.

Workers, the self-employed, and their families The TFEU protects the Free Movement rights of economically active persons in Article 45 (Workers) and Article 49 (Self-Employed). Article 7(1)(a) of the Directive protects the right of both workers and selfemployed to reside in a host state for more than 3 months. That right extends to family members who are union citizens (Article 7(1)(d)) and those who are not (Article 7(2)). Moreover, Article 14(4)(d) also confirms the right of union citizens to enter a host state to seek employment and this right has been established in the case of Procureur Du Roi v Royer.

Persons with independent means, students and their families. The Directive also sets out the right of residence for more than 3 months to three other categories. Article 7(1)(b) relates to persons with independent means. Article 7(1)(c) relates to students. Article 7(1)(d) relates to their families. Persons with independent means and students must have enough financial means and sickness insurance whereas their family members must not become a burden to the host states social security system. Students must simply make declaration of sufficient resources as articulated in Article 7(1)(c). Article 24(2) of the Directive 2004/38 states that member states are not obliged to provide maintenance or student loans to persons other than workers, selfemployed or their family members. This provision has been drawn in the case of Lair v Universitat Hannover and Brown v Secretary for state for Scotland. In addition, the case of R v London Borough of Ealing and Secretary of state for Education also known as the BIDAR case, indicated that economically inactive persons are entitled to student loans and grants provided that they are lawfully resident in the host state and have sufficiently integrated the host state. Subsequently, the Court of Justice found that the five years residency conditions imposed by the Dutch was not considered as excessive to be guaranteed of integration (Foster case)

Family Members Article 5-7 of the Directives 2004/38 grants entry and residence rights to families of union citizens exercising rights as a worker, jobseekers, selfemployed, students or persons with independent means. Family member means, irrespective of their nationality, the union citizens spouse or their registered partner; direct descendants under 21 or who are

dependant, and those of the spouse or registered partner; and dependant direct relatives in the ascending line and those of the spouse or registered partner (Article 2). Article 23 of the Directive states that family members of a union citizen have the right to take employment or self-employment, irrespective of nationality.

Rights of permanent residence Union citizens who have resided in a host state legally and continuously for a period of five years acquire permanent residence and non-EU family members who have resided with them in the host state for at least five years acquire permanent residency rights.

FREE MOVEMENT OF WORKERS EU migrant workers have primary free movement rights under the TFEU both as Union citizens (Article 21) or as Workers (Article 45).

Article 45 TFEU : Rights for Workers Article 45(1) embodies the fundamental principle of free movement for workers. Article 45(2) Free movement entails the abolition of non-discrimination based on nationality between the nationals of the member states as regards of employment, remuneration, and other conditions of employment. Article 45(3) the right to enter and remain is subject to limitations on grounds of public policy, public security, or public health.

Definition of a WORKER There is no treaty definition for a worker but the Court of Justice has broadly defined the term worker in the case of Lawrie Blum V Land Baden

Wuttemburg. The COJ emphasized that it may not be defined as nationals laws but has an EU meaning. In the Lawrie Blum case the term Worker has been defined as the essential feature of employment benefit is that for a certain period of time the persons has to perform services for and under the direction of another person, in return for remuneration.

PART-TIME WORK Levin (1982) Levin lived in the Netherlands and worked as a part time worker. Her husband was also supporting her financially and he was a non-EU national. The Dutch authorities refused her residence permits on the ground that she was not qualified as a worker as she was a part time worker and that her wage fell below the national minimum subsistence level. The Court of Justice held that provided that the work is effective and genuine economic activity and not purely marginal and ancillary, a part time worker is entitled to the free movement rights as a worker.

Kempf (1986) In this case, Kempf worked 12 hours a week as a music teacher and earned below the national minimum subsistence level and was also relying on welfare benefits. the Court of Justice held that provided the work was effective and genuine economic activity and not purely marginal and ancillary, Kempf cannot be excluded from free movement just because her income was below the minimum subsistence level and is supplemented by welfare benefits.

Retaining worker status

Article 7(3) of the Directive 2004/38 states that a union worker who is no longer working or self-employed may nevertheless retain worker or selfemployed status. Economic status is retained if the individual is temporarily unemployed through illness or accident; or is involuntarily unemployed after working for over a year or on expiry of a fixed term contact, if registered as a jobseeker; or embarks on vocational training.

Jobseekers EU nationals are entitled to stay in the host state to seek for employment (Procureur Du Roi v Royer) In R V Immigration Appeal Tribunal, it was submitted that an EU national cannot remain indefinitely in the host state, though the individual would be entitled to stay if he or she is genuinely seeking work and has a real chance of being employed. The Directive 2004/38 provides protection for expulsion of jobseekers who meets these provisions and their families. In addition to this, Article 24 TFEU clearly states that jobseekers are not allowed to seek welfare benefits in the host state. Moreover, in the case of Collins VSecretary of state for work and pensions, the Court of Justice took a different approach to this provision. In this case, Collins had dual nationality. He was half Irish and half American. He came to the UK to seek employment and subsequently applied for jobseekers allowance. He was refused by the UK authority on the grounds that he was not considered as a worker under EU law and not a habitual resident in the UK. The Court of Justice referred his judgement to the Union citizens Treaty right to non-discrimination, under Article 21 TFEU. The Court held that the equality principle in Article 45(2) included the right to financial benefit intended to facilitate access to employment. It is required that the residency period must not be longer than is necessary for the authority to be satisfied that the individual is genuinely seeking work.

Freedom of movement right to enter and remain The Directives 2004/38 sets out workers who are union citizens to enter and reside in another member states for more than 3 months (Article 5(1), 7(1)), and the right of permanent residence after five years (Article 16). Same principles apply for families of the worker.

Freedom from discrimination Article 45(2) provides that Freedom of movement entails the abolition of discrimination between workers of the member states as regards employment, remuneration and other conditions of employment. Regulation 1612/68 clarifies the scope of the right, covering two main areas; eligibility for employment and equality of treatment in employment

Regulation 1612/68 (Articles 1-6): eligibility for employment Any national of member state has a right to take up employment and pursue employment in another member states under the same conditions as nationals of that member states. The regulations prohibits: National provisions limiting applications Offers of employment Laying down special requirement procedures Or other impediments (ALL UNDER ARTICLE 3) Limiting the number or percentage the employment of EU migrant workers (Article 4)

However, the regulation permits language requirements provided that it is necessary by reason of the nature of the post that has to be filled. Case illustration: Groener V Minister for Education In this case, the Irish school required lecturers to be competent in language. The teaching post did not require the use of the language in classroom. The Court of Justice held that the requirement was justified under the regulation provided that it formed part of a national policy to promote the use of Irish as first official language. However a requirement to hold a particular language certificate would be unlawful. Access to employment in the public service Article 45(4) states that Member States may deny employment into public service on grounds of nationality. The case of Commission V Belgium illustrates this provision. Under the Belgian law, certain work for local authorities and on the railways were reserved for the Belgian nationals. They argued that the public service was a matter to the Member states. The Court of Justice disagreed with this argument. The Court insisted the uniform interpretation and application of Article 45(4) throughout the EU. Moreover, the public service has been defined as those involving the exercise e of power conferred by public law where there was a responsibility to safeguard the general interest of the state. The post in question fell outside the scope of Article 45(4). The following posts has been excluded from Article 45(4); Teachers (Commission v Luxembourg) Trainee teachers (Lawrie Blum) University foreign language assistants ( Allue and Connan) Researchers (Commission V Italy)

- Nurses ( Commission V France) - Private sector security guards (Commission v Italy)

Regulation 1612/68 (Article 7-9) Equal treatment in employment Workers are entitled to same tax and social advantage and access to vocational training as national workers, as well as to equality regarding membership of trade unions and housing including home ownership. Case which illustrates this provision (Cristini v SNCF)

Direct Discrimination Direct discrimination entails the open differentiation between nationals and non-nationals, is normally easily identified. Case illustration: Marsmann V Rosskamp Germany enacted legislation which gives protection to workers who were injured at work applied to national workers irrespective of state of residence but only to those non-national workers living in Germany. COJ found the measure to be directly discriminatory.

Indirect Discrimination Indirect discrimination are measures which appear on their face to treat nationals and non-nationals alike but in practice have a discriminatory effect. Case illustration Oflynn v Adjudication officer

REVISION TIP:

Workers; make sure understand the legislative framework: Article 45 (Treaty Rights), Directive 2004/38 (entry and residence); Regulation 1612/68 (equal treatment in employment)

Freedom for the Self-Employed In addition to their (Self-Employed citizens) citizenship rights, Article 49 and 56 set out, respectively, the right of establishment and the right to provide services. Freedom of establishment is the right to pursue activities as a self-employed person in another Member state, for instance, setting up and managing a business or practising a profession. Where a person is established in one member state and provides services into another, this constitutes the provision of services.

Limitations on grounds of public policy, public security, or public health Article 45(3), 52 and 62 TFEU allows member states to restrict rights of entry and residence, respectively of EU migrant workers, persons exercising the right of establishment and those providing services on grounds of public policy, public security or public health. Moreover, Directive 2004/38 refers to measures taken by Member states (Article 27) defined as any action which affects the right of persons to enter and reside freely in the Member states under the same conditions as nationals of the host state. This principle is derived from the R v Bouchereau case.